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[SIR DAVID MAXWELL FYFE, Continued]
I. EACH OF THE FIVE ORGANIZATIONS IS A "GROUP" OR
"ORGANIZATION" AS THESE TERMS ARE USED IN THE CHARTER
The evidence clearly establishes that the five organizations
in question are groups or organizations as we interpret
these terms in the Charter - that is, each is an aggregation
of persons associated in an identifiable relationship having
a collective general purpose.
That the Politische Leiter were an identifiable aggregate,
had a common purpose, and functioned as a group, is clear.
Ample evidence as to the structure and functions of the
Leadership Corps of the Party is to be found in Nazi
publications - the Organization Book of the NSDAP; Der
Hoheitstrager, the official magazine of the Leadership
Corps; in the chart of the Leadership Corps, and a chart of
the Party itself. This group, some 600,000 strong, had
special uniforms, carried special membership cards and
enjoyed countless special privileges. The term "Politische
Leiter" is not one we have invented for the purpose of
giving an appearance of cohesion to a number of unrelated
individuals performing similar but uncoordinated functions
in the Party. The Organization Book of the Party itself
deals with all these Party workers as a unit under the
designation "Politische Leiter." It shows the hierarchical
structure in which they were organized and the manner in
which directives were passed down automatically through the
chain of command to the lowest level and were carried into
effect by all members of the group. It shows further that in
the functioning of this corps the leadership principle
reached perfection. All Party workers were bound by
identical oaths to unconditional obedience to the Fuehrer
and to all leaders appointed by him. At each level, regular
and frequent conferences were held, and the higher and lower
levels met together periodically for discussions of policy.
The Leadership Corps constituted a perfect pyramid in which
every stone at every level was necessary to maintain the
whole structure. It had one single, common purpose - the
maintenance of the organization and ideology of the Nazi
Party.
The Indictment defines the "Reichsregierung" (Reich Cabinet)
as consisting of three classes of persons: (1) members of
the ordinary cabinet after 30th January, 1933; (2) members
of the Council of Ministers for the Defence of they Reich;
and (3) members of the Secret Cabinet Council. These three
class together make up the group of forty-eight members
which we are prosecuting under the designation
"Reichsregierung." Each of these, taken by itself,
constitutes an identifiable aggregate working toward a
common end. The ordinary cabinet of any government is as
clear an example of a group as could be found. The ordinary
cabinet of the Nazi Reich did not differ in that respect
from similar institutions in
[Page 295]
other governments. It met frequently as a cabinet in the
early days of the Nazi regime, and when meetings thereafter
became uncommon, it continued to function as a group, in
passing on decrees and laws through the procedure of
circulating drafts of proposed enactments to all its
members. An example of this procedure is before the Tribunal
in the form of a memorandum from the defendant Frick to the
Chief of the Reich Chancellery. The same cohesion and
unified function is found in the Council of Ministers for
the Defence of the Reich, which was established in 1939.
Like the ordinary cabinet, its members consulted together in
actual meetings, as shown by the minutes of such meetings in
September, October, and November, 1939, and, like the
ordinary cabinet, it also functioned by using the
circulation procedure, a typical instance of which is the
letter from Dr. Lammers, 17th September, 1939, to members of
the Council of Ministers for the Defence of the Reich. The
Secret Cabinet Council, an advisory body on foreign policy,
consisting of eight members, was an identifiable unified
aggregation, as appears from the decree which created it.
The inclusion of these three classes under the single
designation "Reichsregierung" is not an attempt to create an
artificial relationship among three separate and independent
entities. Actually, the three were collectively as much a
group as each was independently, for the Council of
Ministers for the Defence of the Reich and the Secret
Cabinet Council were really committees formed out of the
ordinary cabinet. The decrees creating these two committees
demonstrate that the entire personnel was composed of
individuals who were in the ordinary cabinet. Not only in
the personnel, but in action, functions, and purpose as
well, the ordinary cabinet and its committees were unified.
Members of the ordinary cabinet who were not members of
these committees were nevertheless present at meetings of
the Council of Ministers, as shown by minutes of such
meetings, and, under the circulation procedure, received
drafts of decrees prepared by that Council. This aggregation
- the cabinet and committees formed of some of its members -
had a single collective purpose, that of governing the Reich
in such a fashion as to carry out the schemes of the Nazi
conspirators.
The SA, which was created in 1920, is one of the simplest
examples of the type of group or association contemplated by
the provisions of the Charter. It was defined by a German
law as a component of the Party, having its own legal
personality, and it was characterized by the Nazi Party
Organization Book as a distinct entity. It had an
identifiable membership of from 1,500,000 to 2,000,000,
bound together by common standards, wearing a common and
distinctive uniform, having common aims and objectives, and
carrying on common activities. The general purpose of the
SA, to which the whole membership was devoted, was stated in
the Organization Book of the Party, "to be the bearer of
National Socialist armed will," and, according to the same
Party manual, a member had to withdraw if he no longer
agreed with the SA views or was not in a position to fulfil
completely the duties imposed upon him as a member of the
SA.
Like the SA, the SS was beyond question a unified
organization. It was established by German law as a
component of the Party having its own legal personality. It
was described in the Organization Book of the Party as a
"homogeneous firmly welded fighting force ... bound by
ideological oaths." It had a clearly identifiable membership
which rose to about 600,000 towards the end of the war,
composed of persons who met the same basic uniform standards
of race ideology. Despite its many functions and activities,
and its numerous departments and offices and branches, it
was an integrated and unified organization and it was
according to Himmler's tirade to the SS Gruppenfuehrer on
4th October, 1943: "One block, one body, one organization."
It had, of course, its own uniform, and enjoyed special
privileges, while pursuing the general purposes of the Nazi
conspirators running all the way from localised bullying
through political, racial and religious barbarities to the
waging of wars of aggression, and the most violent and
revolting Crimes Against Humanity.
[Page 296]
From its earliest days, the Nazis always regarded that
portion of the police forces called the "Gestapo," or Secret
State Police, as a separate group, a clearly identifiable
aggregate performing a common function. The very purpose of
Goering's decree of 26th April, 1933, establishing the
Gestapo in Prussia, was to create in that province a single
body of secret political police, separated from the other
Prussian police forces, an independent force having its own
particular task, on which he could entirely rely. The same
motives led to the establishment of similar identifiable
groups of secret political police in other German provinces.
The steps by which these groups were all consolidated into a
single secret political police force for the whole Reich are
fully detailed in the decrees and laws which have been cited
to the Tribunal. When the RSHA, the Reich Main Security
Office, was created in 1939, the Gestapo was not dispersed,
but became a distinct department of that central office, as
shown by the chart of RSHA introduced in evidence, and by
the testimony of the witnesses Ohlendorf and Schellenberg.
They easily estimated the number of persons in the Gestapo
at from 30,000 to 40,000.
Throughout these proceedings, the Gestapo and the SD have
been considered together, due to the fact that the criminal
enterprises with which each is chargeable were supported, to
a greater or lesser degree, by both. The Indictment charges
the Gestapo with criminality as a separate and independent
group or organization. The Indictment includes the SD, by
special reference, as a part of the SS, since it originated
as part of the SS and always retained its character as a
Party organization, as distinguished from the Gestapo which
was a State organization. The SD, of course, had its own
organization, an independent Headquarters with posts
established throughout the Reich and in occupied territories
and with agents in every country abroad. It had a membership
of from 3,000 to 4,000 professionals assisted by thousands
of honorary informers, known as V-men, and by spies in other
lands, but we do not include honorary informers who were not
members of the SS, nor do we include members of the Abwehr
who were transferred to the SD toward the end of the war,
excepting in so far as such Abwehr members also belonged to
the SS.
If we ask where the ubiquitous SD man is to be found, the
answer is not at all difficult, although some of the
testimony and arguments may have been confusing to the
Tribunal. Until 1939, the SD man was always to be found in
the head office of the SD of the Reichsfuehrer SS or in the
various regional offices of the SD throughout the Reich.
During that period, the SD was repeatedly identified as a
department of the SS in SS organization charts and plans,
and by laws and decrees issued by the Government. During
this period the SD was the political intelligence agency of
the SS, the Party, and the State, and it provided secret
political information to the executive departments of the
State and Party, particularly to the Gestapo. After 1939,
the SD man is to be found in Offices III and VI of the RSHA
and in the various regional SD offices within Germany, in
the occupied territories, and in the Einsatz Groups of the
Security Police and the SD in areas close behind the front.
In the course of the argument, some confusion has also
arisen over the characterization of the RSHA, WVHA,
Department Eichmann and Einsatz Groups. The RSHA was a
department of the SS, and substantially all of its personnel
belonged to the SS. It was under the command of the SS
Obergruppenfuehrer Kaltenbrunner. In addition to the SD,
which was always an SS formation, it included the Gestapo
and the Reich Criminal Police, both of which were State
agencies. For this reason the RSHA was also carried as a
department of the Reich Minister of the Interior. The WVHA
was another strictly SS department. The WVHA was under the
leadership of SS Obergruppenfuehrer Pohl, who was charged
with the administration of concentration camps and the
exploitation of the labour of the inmates. There was no
Department Eichmann as such. Eichmann was simply the head of
the department of the Gestapo which was charged with matters
[Page 297]
pertaining to the Churches and to the Jews. It was this
department of the Gestapo which had primary executive
responsibility for the rounding up of the Jews of Europe and
the committing of them to concentration camps. The Eichmann
department within the Gestapo was no more independent of the
Gestapo than any other department under Muller. The Einsatz
Groups of the Security Police and SD - and it is very
important that the full title be held in mind at all times -
were the offices of the Security Police and SD operating in
the field behind the armies. When police control had been
sufficiently established in newly occupied territory, the
mobile Einsatz Groups were eliminated, and they became
regional offices under the commanders of the Security Police
and the SD in occupied territories. The Einsatz Groups were
a part of the office of the Security Police and SD, the
RSHA, and as such were a part of the SS, limited only by the
fact that some personnel assigned to the groups were not SS
members. In 1939, the main offices of the SD and the Gestapo
were consolidated in the RSHA, but the SD at all times
preserved its independent identity.
Surely the prosecution has met the requirements of group
proof as to these organizations, not only by the standards
which it has imposed upon itself but as well by every
ordinary rule of reason and experience.
II. MEMBERSHIP IN EACH OF THE FIVE ORGANIZATIONS WAS
VOLUNTARY
Membership in the Leadership Corps was indisputably
voluntary. No one was compelled to join the NSDAP, much less
to become one of the leaders of the Nazi Party. We do not
doubt that many joined the Leadership Corps for business,
social or other selfish reasons. These are the commonplace
motives for cheap political prestige, but they cannot and do
not amount to legal compulsion.
No one was drafted into the Reich Cabinet. Moreover, some of
its members resigned when they found themselves in conflict
with its aims and objectives. Schlegelberger left because of
the infringement of the independence of the judiciary;
Schmitt resigned because he was convinced that Hitler's
course was the way to war; Eltz von Rubenach resigned
because of Hitler's policies against the Christian Churches.
A place in the Cabinet circle with its titles and tinsel was
the high ambition of most of the Nazis. Competition for
these places was fierce, and any present effort to fend off
a declaration of criminality against this group with a
pretence of membership by force is ludicrous.
So free of compulsion was membership in the SA that the
Party Organization Book, as late as 1943, urged SA men to
withdraw from the organization if they felt they were unable
to agree with the aims and ideology and to fulfil all the
duties imposed upon them. Party members were not forced into
the SA lists. The controls and the discipline imposed on SA
members within the framework of the organization have
nothing to do with the voluntary character of the membership
itself. The willing submission of the SA man to the SA
command is not the same thing as compulsory and involuntary
entry into the organization.
Applicants for the SS not only were volunteers, but in
addition they had to meet the strictest standards of
selection, as is illustrated in the SS Soldiers' Manual, and
by Himmler's insistence on free and voluntary applications
for membership as set out in his letter of 1943 to
Kaltenbrunner. The SS characterized itself as an elite and
select corps, advertised that it carefully weeded out every
applicant who did not conform to its racial, biological and
ideological standards, and made it plain to everyone that
unusual qualifications were required for membership. Such in
fact was Himmler's boast to the Wehrmacht, "Should I succeed
in selecting from the German people for the organization as
many as possible who possess this desired blood, and in
teaching them military discipline and the understanding of
the value of blood and the entire ideology resulting from
it, then it would be possible actually to create such an
elite organization as should successfully hold its own in
all cases of emergency." The elite were required to
establish Nordic descent. In the case of an officer
applicant as far back as the year 1750,
[Page 298]
and for regular applicants to the year 1800. In addition
unusual physical standards of height and odd requirements of
Nordic appearance were set up, and the political and
ideological background of every elite candidate was
carefully scrutinized. It is highly significant that we have
proof of insistence on racial and ideological qualifications
as late as 1943, even in the Waffen SS. It has been argued
that because some men were conscripted into the Waffen SS in
the last desperate stages of the war, the organization as a
whole was not a voluntary one. Those who were actually
forced into divisions of the Waffen SS may have an adequate
defence in subsequent hearings, but we insist that
compulsion born of a frantic effort to stave off defeat in
the closing hours of the war does not change the essentially
voluntary aspect of the membership as a whole. Whatever
pressure may have been exerted to expand the membership of
this organization, it originated and remained basically
voluntary and selective.
The SD as a part of the SS was composed of SS men with
special qualifications. The deeds of this organization best
explain the nature of these special qualifications, for the
record in this case in replete with horrible tales of their
doings. The SD man was simply a surcharged SS man. If the
membership of the SS was basically and fundamentally
voluntary, then it follows automatically that the SD
membership was likewise voluntary.
The Gestapo was at all times a State organization, a branch
of the Government similar in all usual respects to other
branches of the Government. In considering the voluntary
character of its membership, all other considerations are
secondary to this basic determination of the Gestapo as an
agency of State. If membership in the Gestapo was
compulsory, membership in the Order Police, and in the
Department of Safety, and in the Department of Finance must
have been compulsory. When the Gestapo was created,
following the seizure of power, it is true that many members
of the previously existing political police system of the
various Lander were transferred to it. But they were under
no legal compulsion to join. As the Gestapo affiant Losse
stated, "If they had refused, they would have had to reckon
with a dismissal from the service without pension, so that
unemployment would have threatened them." The witness
Schellenberg stated that new members of the Gestapo were
taken on a voluntary basis. Any one of them could have
resigned and sought employment in other branches of the
Government. The witness Hoffman, in testifying before the
Commission, stated that he applied for a job in three
branches of the Government, of which the Gestapo was one.
The Gestapo accepted his application and in that way he
became a member of the organization. There was nothing to
prevent a Gestapo official from resigning his position if
the aims and activities and methods of the organization
became repugnant to him. The witness Tesmer testified before
the Commission that if an officer refused to carry out a
criminal order he probably would be removed from his
employment. Even after the war began, when all Government
officials were more or less frozen in their positions,
members of the Gestapo were able to resign. The witness
Tesmer himself resigned from the Gestapo during the war, and
the witness Straub testified that a person could resign his
position in the Gestapo at the risk of going to the front on
active military service. Surely this was not compulsion in
any legal sense. The sacrifices which members of the
political police might face upon resignation, such as loss
of seniority and forfeiture of pension rights, may have
seemed decisive to those who remained in the Gestapo, but
such considerations could under no circumstances be
construed as legal compulsions justifying continued
membership in an organization of such notorious criminality.
There may be particular instances where some members of the
army secret field police were later transferred from the
military to the Gestapo. In such instances, these
individuals may have gained, on the basis of military
orders, a personal defence to the crimes committed by the
Gestapo during the period of their membership. But such
special instances, justifiable in subsequent proceedings,
can in no way affect the basic character of
[Page 299]
the Gestapo as a single department of the Government, with
no greater degree of compulsion to join and no greater legal
restraint from resigning than any other department of the
State.

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